Judicial Overreach: When 61 Seats Buys You Supreme Power

There is one question that has gotten lost in all the noise about the hugely controversial and divisive judicial overhaul being pushed by the new right-wing coalition in Israel.

I’ve heard the critiques about how this is a blatant power grab by the ruling coalition. I’ve heard the defense that it is a “correction” of the previous power grab by the Israeli Supreme Court. And I’ve heard the centrists who argue that some reforms are needed but that both sides should negotiate a reasonable compromise (my preference).

What I haven’t heard is this: If the judicial overhaul goes through, what happens when a center-left coalition comes in with 61 seats and embraces all this extraordinary power?

As the right-wing coalition charges ahead with laws they love, what will happen when they see another coalition establish laws they hate? After all, they’ve set the precedent: Get a majority of 61 seats in a parliament of 120 seats and you have the “democratic right” to grab as much power as you like.

As reported in Times of Israel, the coalition has already “passed in its preliminary reading a bill that could almost completely end court oversight of legislation, by enabling parliament to legislate laws that are preemptively immune to judicial review with a simple majority of 61 of 120 MKs.”

In other words, because the new bosses have a majority of seats, they’ve decided they can set rules that give them power to set any rules they like. Get it? They’re using power to get more power.

One reason this issue has been so confusing is that this is not the kind of activity we’re used to seeing from a parliament, which typically deals with legislation to improve the economy, health care, education, infrastructure, and so on.

No, this coalition has focused instead on increasing its own power. It’s not debating how to reduce the cost of living but how to reduce the power of the Supreme Court and transfer it to itself.

Even if you completely agree with this power shift and every new law that is being advanced, the question remains: What happens when a different coalition takes full advantage of this new power?

What if the new coalition, for example, decides that every store can open on Shabbat, or every ultra-Orthodox must join the army, or every illegal outpost must be dismantled? And because of the new rules set by this coalition, no court can override any of it?

The problem with gutting the power of the courts to check the power of politicians is that in Israel’s system, there is no other line of defense. As Yedidia Stern of the Jewish People Policy Institute writes in Ynet, “Many of the lines of defense accepted around the world do not exist in Israel… and while we have a legislative branch, it lacks practical power to oversee the operation of the executive branch.”

Yes, judicial reforms are needed to correct the current imbalance. The answer, however, is not to overcorrect and give virtually all the power to politicians and turn Israel into a system with one supreme branch of government with no checks or balances.

Yes, judicial reforms are needed to correct the current imbalance. The answer, however, is not to overcorrect and give virtually all the power to politicians.

America’s Founders understood that anything having to do with distribution of power is sacrosanct. Unchecked power in any direction can undermine fundamental human rights, not to mention minority rights. That’s why they made it so difficult to change the rules of power, demanding a Constitutional amendment by a two-thirds vote of both Houses of Congress, and a subsequent ratification by three-fourths of the State legislatures.

In Israel, the new coalition has decreed that changing the rules of power doesn’t require a two-thirds supermajority but only a one seat majority– 61 seats out of 120.

Where does this cockiness come from? Are they assuming they will never lose their slim majority and will govern indefinitely? Have they not seen the latest poll showing them losing nine seats to 55 and the opposition winning nine seats to 65?

Before the pendulum swings back again, as it invariably will, the new sheriffs in town can do their country a big favor and negotiate a reasonable compromise. As Stern writes, “Compromise is necessary to preserve our solidarity… Leaders of Israel: History will judge you by the sincerity of your willingness to move toward compromise.”